Moosavian, R (2016) A Just Balance or Just Imbalance? The Role of Metaphor in Misuse of Private Information. Journal of Media Law, 7 (2). pp. 196-224. ISSN 1757-7632
Abstract
This article undertakes analysis of misuse of private information (MPI) case law informed by deconstruction and wider literary and critical theory. It specifically considers the operation of the ‘balance’ metaphor in MPI case law: What rhetorical effects might it foster, and how? What insights can the balance metaphor in MPI case law reveal about the nature of legal discourse more generally? This article starts by providing an account of select theorists who explore the subtle but vital role that metaphor plays in non-literary texts. Though metaphors have traditionally been viewed as poetic or literary devices, deconstruction indicates that they often exert a hidden influence in the texts of other disciplines such as philosophy and law, with inevitable implications for claims based on truth, objectivity and reason. This account ultimately highlights the fundamental - but often overlooked - role of metaphor in legal discourse. Following this discussion, the article proceeds to investigate the key ‘balance’ metaphor in misuse of private information judgments. It identifies and analyses two distinct ways in which the balance metaphor subtly benefits and supports judicial reasoning in these judgments. First, it creates an impression of certainty by drawing on connotations of the quantifiable and calculable. Second, it fosters the moral appeal of a decision by alluding to notions of justice and equilibrium. In doing so, the balance metaphor marginalises the non-rational, inexpressible, even mysterious, aspects of judicial rights balancing.
Metadata
Item Type: | Article |
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Authors/Creators: |
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Copyright, Publisher and Additional Information: | © 2015 Taylor & Francis. This is an Accepted Manuscript of an article published by Taylor & Francis in Journal of Media Law on 13 Jan 2016, available online: https://doi.org/10.1080/17577632.2015.1108587 |
Keywords: | article 8; Rhetoric; Legal metaphor; Rights balancing; misuse of private information; balance; metaphor; human rights; legal theory |
Dates: |
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Institution: | The University of Leeds |
Academic Units: | The University of Leeds > Faculty of Education, Social Sciences and Law (Leeds) > School of Law (Leeds) |
Depositing User: | Symplectic Publications |
Date Deposited: | 03 Jan 2019 14:46 |
Last Modified: | 03 Jan 2019 14:46 |
Status: | Published |
Publisher: | Taylor and Francis |
Identification Number: | 10.1080/17577632.2015.1108587 |
Open Archives Initiative ID (OAI ID): | oai:eprints.whiterose.ac.uk:136660 |